October 10, 2015

Schrems/Safe Harbor Forum: A Sample of Some Critical US Commentary

With network member Herwig Hofmann (Luxembourg) representing the plaintiff, Max Schrems (Vienna PhD candidate in law), in the action that led to the CJEU judgment invalidating the US-EU data-sharing agreement known as 'safe harbor', a flood of commentary is to be expected.  We at Europaeus urge network members to send us their thoughts for posting or cross-posting.  In the interim, to give a sense of how the judgment has been received in some quarters on this side of the Atlantic, we publish excerpts from some critical US commentary below, and we look forward to posting views on all sides of the debate in the future.

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Timothy Edgar (Brown), writing in Lawfare ("Schrems v. Data Protection Commissioner: Some Inconvenient Truths The European Court of Justice Ignores"), notes that the judgment fails to take into consideration at least two crucial facts:

First, Max Schrems’s Facebook data actually has more protections in US law when it is on a server in the US than when it is in the EU.  As I explained earlier this year in TechCrunch, offshoring data won’t protect it from the NSA, and neither will keeping data in Europe.  When content is located inside the United States, it cannot be collected except by order of the Foreign Intelligence Surveillance Court (FISC). The court imposes detailed oversight and auditing requirements, and has enforced those rules with threats of contempt of court....

Second, for the NSA to obtain Max Schrems’s Facebook data in the US, the NSA will face more legal scrutiny under US law than most intelligence services in the world, including in EU countries, ever will.  As I’ve explained before on this site, many European countries do not require judicial orders for intelligence surveillance....

The bottom line is that, if the fact that a country provides broad legal authority for national security surveillance means that the EU doesn’t consider it a safe jurisdiction for storing data about its citizens, it might want to take a good long look at the laws of its own member states....

And that’s where this decision by the ECJ offers an extraordinary opportunity for global surveillance reform.  If the ECJ is serious about subjecting national security surveillance laws to real scrutiny, it could build serious momentum for reform of those laws – and not just in the United States.

Edgar's suggestion is echoed by Evgeny Morozov, a senior editor at The New Republic.  Writing in the Financial Times, ("Worldwide fight over personal data has barely begun"), Morozov notes:

Alas, Europe’s own record on surveillance is disappointing. One would be hard pressed to find the differences between core provisions of the new surveillance law in France ... and those at work in America.... 

In this instance, one can’t blame Americans for complaining about hypocrisy when Europe’s stance on surveillance is full of contradictions. 

Finally, Richard Epstein (NYU), writing in Politico ("Europe’s top court goes off the rails"), criticizes several "astonishing" features of the Court's judgment, notably "that it paid no heed whatsoever to the reliance-interest of thousands of companies," and "that the ECJ attached no weight whatsoever to the massive dislocation that its decision would impose on all the companies in question."  He concludes:

Normally, decisions to shut down major programs require some balance of the equities on both sides. That was wholly ignored by the ECJ. Starting from its dubious premises, the ECJ has ripped apart a system that will take a great deal of effort to put back together. In the interim, virtually all the companies in question are left adrift on the question of whether they should shut down their networks immediately or risk serious civil and criminal penalties for moving further forward in this direction. It takes years to put into place successful complex systems of data transmission. It takes only one arrant complaint and a dubious decision of the ECJ to rip it all apart.

No doubt others will have different opinions.  We look forward to posting more commentary from the network on this important decision in the near future.

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